Plan to move most divorce and judicial separation cases to District Courts a ‘fatal flaw’ in new Bill

A proposal to have the District Court deal with divorce, judicial separation and other cases with a value up to €1m is a “fatal flaw” in the new Family Courts Bill, a leading family lawyer has said.

The District Courts are already overwhelmed by a huge workload and the proposal to move even more cases there will exacerbate existing delays with no improvement in the process, said Keith Walsh, solicitor and senior counsel.

While strongly welcoming many of the Bill’s proposals, particularly the go-ahead for a new Family Court complex by 2026, Mr Walsh said it is crucial that the necessary funding be provided, including for access to specialist supports for families going through relationship breakdowns.

Family law has never received resources comparable to the criminal, civil and commercial courts, he said.

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Most of the proposed reforms will assist litigants and the guiding principles, specialist judges, specialist courts, dedicated court rules, new court buildings are “all long overdue”, he said.

If the reforms depend on new court facilities being provided to house the new family courts, reform will be delayed, he cautioned.

It is “deeply regrettable”, he added, that the Bill has not gone through the normal pre-legislative scrutiny. The Joint Oireachtas Committee on Justice could, he said, still conduct a meaningful consultation involving all stakeholders to assist the legislature to produce a “more practical and workable” Bill.

Mr Walsh, who carried out a detailed analysis of the Bill for a forthcoming article in the Parchment, the magazine of the Dublin Solicitors Bar Association (DSBA), said the immediate issue, and “fatal flaw” in the Bill, is obvious to all those with experience of family law cases in the District Courts.

The proposals for expansion of the District Court’s jurisdiction in family law cases effectively remove the Circuit Family Court from most maintenance, divorce, judicial separation, civil partnership and cohabitation cases, he said.

The High Court’s jurisdiction applies only where the property is valued at more than €3 million and the planned expansion of the District Court’s jurisdiction means the Circuit Court will deal only with cases valued between €1 million and €3 million.

There are already long delays in securing District Court hearings of family law cases, including cases involving applications for access, guardianship and maintenance, Mr Walsh said.

Summary jurisdiction

The Bill’s proposal means the District Court will now be part of a specialised number of family law “hubs” countrywide, with the effect it will no longer be a court of local and summary jurisdiction.

If that proposal is put into effect now, it would exacerbate delays and problems for everyone in the District Court and leave the Circuit Court with very few cases, Mr Walsh said.

However, if judicial separation, divorce and other cases remain in the Circuit Court, the new system is likely to work well, he believed.

The DSBA, drawing on Courts Service statistics, has estimated that more than 5,175 family law cases were initiated in the District Court in 2019, 7,330 were initiated in the Circuit Court and more than 350 in the High Court.

The Law Reform Commission, in a 1996 report, concluded that fundamental issues relating to the status of persons are not appropriate for determination at District Court level and that there was much to be said for a unified family courts system which draws on the resources of both the District and Circuit courts, Mr Walsh said. Those conclusions remain relevant but the Bill is not proposing such a unified system, he said.

Another proposal permitting spouses to jointly apply for a decree of divorce or judicial separation and for civil partners to jointly apply for a dissolution of the partnership raises some serious questions in the context of basic principles such as independent legal advice and requires close examination, he said.